Zero Tolerance: How Did We Get Here?

In the late 1990s when zero tolerance policies started in our nation’s schools they were designed to keep students safe. This was the Three-Strikes-and-You’re-Out era when everyone was “getting tough on crime.” And, like so many criminal justice processes, we extended those policies and attitudes to our schools. Then, shocked by the Columbine High School massacre, our society responded in our typical fashion: we doubled down on punishment.

For years, and with each subsequent school shooting, we got tougher. Here in Michigan ten-day suspensions were handed down for all sorts of conduct violations from fights to insubordination. Michigan’s Zero Tolerance clauses in the Revised School Code mandated permanent expulsion for students who:

Possessed a dangerous weapon in school at any age (MCL 380.1311(2))

Committed arson in school at any age (MCL 380.1311(2))

Committed an act of criminal sexual conduct at school at any age (MCL 380.1311(2))

In sixth grade or higher, physically assaulted an employee, volunteer or contractor of the school (MCL 380.1311 A)

Zero Tolerance laws mandated either suspension or expulsion of up to 180 days for students sixth grade or older who:

Physically assaulted another student (MCL 380.1310)

And it allowed suspension of any length for any student in any grade who:

“is guilty of gross misdemeanor or persistent disobedience, and school officials believe suspension or expulsion is in the interest of the school.” MCL 380.1311(1) [1]

Government wanted to prove that Michigan takes student safety seriously. But it didn’t take long for schools to recognize that keeping kids safe didn’t always require kicking them out. In fact, by mandating expulsion and suspension, the law prevented administrators from engaging in time-honored discipline measures with kids to ensure their safety and protect their school community.

It took a little longer for schools and others to recognize that many of the suspended and expelled kids were poor, had dark skin, and/or qualified for special education services. And when they looked at what was happening to these excluded children, they found many of them failed to graduate. More sobering, many were becoming involved in the criminal justice system. The American Civil Liberties Union called this “The School-to-Prison Pipeline” which coincided with unprecedented growth in our country’s corrections industry. Between 1980 and 2010, for example, annual spending on jails and prisons exploding from $6.9 Billion to $80 Billion nationwide.[2]

It has taken too long for many, but we are finally recognizing how dangerous Zero Tolerance has been for our kids—especially the most vulnerable of our children. Nationwide, school discipline data show students of color, children from low-income families, English-language learners and special education students are suspended or expelled at much higher rates than their similarly situated peers[3]. Further studies indicate that even short-term suspensions separate students from their communities of support, deny them instruction time with their classmates and isolate them socially. This increases their odds of misbehaving, dropping out and becoming involved with the criminal justice system[4]. One in 15 people born in the US in 2001 can expect to serve time in jail or prison in their lifetime.[5] Incredibly, one third of African American boys born since 2000 will likely be incarcerated.[6]

In addition to this blatant inequity and stolen futures, Zero Tolerance’s financial costs to society are staggering. In 2015, the State of Michigan budget reflected spending of more than $2 Billion for Corrections and $72 million for Elementary and Secondary Education.[7] But even if an expelled student manages to stay out of prison, across the US about 4,000 students drop out of school every day. If they fail to earn a diploma or GED, they will make $8,000 less every year than their counterparts who completed their K-12 education. As a result, they pay less in taxes but use more government-sponsored social programs than high school graduates.[8] Princeton Professor, Cecilia Rouse estimates that a high school graduate (with no further education) will earn approximately $260,000 more over his/her lifetime than a high school dropout, and will likely pay $60,000 more in taxes[9]. Those discrepancies sky-rocket when compared to former classmates who earn college degrees.

Recognizing these and other severe repercussions, entities from the Michigan and US Departments of Education to the ACLU have called on schools to move away from Zero Tolerance practices. They encourage schools instead to adopt restorative justice practices for discipline and healthier school climate. In December 2016, Michigan’s legislature unanimously adopted PA 330-331, which roll back some of Zero Tolerance’s more draconian measures and require schools to consider using restorative justice before suspending or expelling a student for any infraction except bringing a firearm into a weapons-free school zone.

Further, these new laws establish a rebuttable presumption that suspension or expulsion is not justified unless the school can show it considered all the factors the law requires.[10] Like the foundational assumption “Innocent Until Proven Guilty” this rebuttable presumption means students belong in school instead of out on disciplinary exclusion. After August 1, 2017, when schools suspend or expel a student for longer than 10 days, their decision could can be appealed and possibly overturned unless they can show that those who made the decision considered all the factors the law outlines for keeping the child in school.

In 1964 the Reverend Doctor Martin Luther King, Jr. closed a Baccalaureate sermon saying “The arc of the moral universe is long, but it bends toward justice.”[11] Looking back over Zero Tolerance’s history—from the officials who created it to protect our children, to the educators who used it to preserve school safety and order, to the advocates who alerted us to its horrible consequences—it seems as though we are seeing it bend as Reverend King predicted. To that I say, Amen.

[5] Bryan Stevenson, Just Mercy: A Story of Justice and Redemption (2014) Spiegle & Grau, New York. On p. 321 he cites Thomas P. Bonczar, Prevalence of Imprisonment in the US Population 1974-2001, Bureau of Justice Statistics (August 2003)

[6] Bryan Stevenson, Just Mercy: A Story of Justice and Redemption (2014) Spiegle & Grau, New York. On page 321 he cites data from Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System (August 2013)